The Immorality of Torture

By Nuwe Ahereza Marvin*

In Uganda and the world over, torture continues to permeate its way into the society. Of course, torture has since been prohibited both under domestic and international legal frameworks however, the perhaps sorer part of torture is the immorality and degradation of civic ethics that it presents. There can be no moral or legal justification for torture in Uganda.

Recently, the torture of Edward Ssebuffu alias Eddie Mutwe, the body guard of Robert Kyagulanyi has highlighted the unfortunate lack of dignity, morality and basic human ethics by Gen. Muhoozi Kainerugaba and his compatriot security forces that were complicit in this vile act. This is only among a few of the many active cases of torture in Uganda targeting dissent and opposition members.

Torture has been defined in many legal provisions and cases both domestically and internationally but for moral purposes, torture is the intentional infliction of extreme physical suffering on some non-consenting, defenceless person; the intentional, substantial curtailment of the exercise of the person’s autonomy and generally undertaken to break the victim’s will.

Immorality has been defined as the violation of moral laws, norms or standards. It refers to an agent doing or thinking something they know or believe to be wrong.  It can be viewed through the sphere of what is normally accepted in a society depending on the customs, cultures and norms and way of life of that society. Importantly the definition of immorality can change depending on societies or even generations.

© Human Rights Watch

A fundamental element of torture is the intentional infliction of extreme physical suffering often involving severe pain. Most of the barbaric practices employed include searing with hot irons, burning at the stake, electric shock treatment to the genitals or general application, cutting out parts of the body such as tongues, entrails, or genitals, severe beatings, suspending by the legs with arms tied behind back, applying thumbscrews, inserting a needle under the fingernails, drilling through an unanesthetized tooth, making a person crouch for hours in the ‘z’ position, waterboarding (submersion in water or dousing to produce the sensation of drowning), denying food, water or sleep for days or weeks on end, mock executions, creating intense fear using phobias, such as a rat phobia scenario where rats are placed on a tied-up victim's body and face, exposure to constant light or darkness or loud noise among others. All these inhumane practices (and those not specifically mentioned) have been widely condemned. Torture ‘hurts very badly’ and for this reason alone, it is an evil thing and cannot be justified.

Secondly, it involves the intentional and substantial curtailment of the victim's individual autonomy. Given the moral importance of autonomy, this curtailment makes torture an evil thing, even independent of the physical suffering it causes. Torture seeks to overwhelm the victim's capacity to exercise rational control over their decisions by ‘literally terrorising them into submission’. Torture is for these reasons considered an intentional attack on a person’s autonomy. Torture does not always affect one’s autonomy through coercion. Coercion is when someone forces you to do something by threatening harm for instance the robber’s line that: ‘Give me money or I’ll shoot you’. Torture might start with threats (coercion), but the real torture often happens when threats fail. Instead of giving a person a choice, torture tries to crush one’s ability to resist by causing them extreme pain or fear. For example, if a torturer hurts you to make you confess, they are not just threatening you, they are also breaking your control over your own decisions. Sometimes torture is not even about getting something from the victim, it might just be about causing suffering or destroying their mind. So, while some forms of torture use coercion, other forms are purely about domination, leaving the victim with no choice.

As the goal of torture is to break someone’s will, it is immoral and unethical. While breaking someone’s will is different from degrading their autonomy, the two have the same end point rooted in violating humaneness and dignity. Breaking a person’s will can be understood in a minimalist or a maximalist sense. In its minimal sense, breaking a person’s will is causing that person to abandon autonomous decision-making in relation to some narrowly circumscribed area of life and for a limited period.  In its maximalist sense, breaking a person’s will involves reaching the endpoint of the kind of process Sussman describes as the point at which the victim’s will is subsumed by the will of the torturer. The character Winston Smith in George Orwell’s dystopian novel 1984 is an instance of the latter extreme endpoint of some processes of torture. The prolonged violation of one’s will, humanness and dignity can in effect lead to loss of identity since they are stripped of both physical and mental belonging by their captor who uses torture as a tool of shame and embarrassment. This goes on to violate the basic laws of reason rooted in natural law and morality.

Jacob Bronsther in his article, Torture and Respect looks at torture from the angle of respect for human worth and value. He notes that torture is fundamentally wrong because it interferes with human value. He maintains that disrespect is the metric of degradation and is a crucial concept in the wrongfulness of torture. Disrespect, in this context, involves a failure to respond appropriately to something's capacity to realize value, including failing to protect the possibility of that realization. Humans realize value diachronically, meaning they stitch moments together through time to construct a good life as a whole. This capacity is enabled by practical reason, memory, and imagination. It thus follows that respecting a person involves acknowledging and not hindering this capacity for realizing value over time in their life. Torture is thus a pervasive act that forces the victim into a locus of disvalue, saturating their consciousness with suffering and maximizing their capacity for disvalue. Torture completely deprives a human being of their value generation capacity and reduces them to a ‘shrilly squealing piglet at [the] slaughter’ inflicting a ‘make it stop right now panic’ and restricting their awareness to a maximally terrible present. This represents an archetype of disrespect by treating a person worse than an animal and undermining the worthiness of their life.

© Human Rights Watch

Torture has been accumulated to the extremity of cruelty as someone captures another and subjects them to terrible pain. Cruelty is combined with cowardice, because the captive not only cannot escape, but cannot fight back or retaliate. Defencelessness magnifies the captive's terror. Reduced to absolute passivity, he or she experiences, in David Sussman's apt oxymoron, a ‘living death.’ The author notes that if torture is not wrong then nothing is. It is for these reasons that torture has equally been recognised as inherently wrong, immoral, devoid of any reason in international law. The prohibition of torture has been internationally recognised as a  peremptory norm – jus cogens. The trial division of the International Criminal Tribunal for the former Yugoslavia stated in the case of  Prosecutor v Furundžija:

Because of the importance of the values it protects, [the prohibition of torture] has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.

The jus cogens nature emerged from the wide recognition of torture as universally unacceptable because its prohibition is a moral imperative prior to law, derived from the equal dignity of all human beings. Because of its universal acceptance, states have universal jurisdiction to prosecute acts of torture. In the case of Filártiga v. Peña-Irala, the US Court of Appeals held that a torturer is an enemy of all humanity. It stated that ‘the torturer has become like the pirate and slave trader before him: hostis humani generis, [that is] an enemy of all mankind.’ In similar fashion, International instruments like the 1948 Universal Declaration of Human Rights and the 1975 UN Declaration against Torture explicitly state that torture is an offense to human dignity.

In conclusion, torture embodies a pervasive, cowardly barbaric act or omission that has no place in present civilisation. Torture represents an archaic and degenerative act not fit for anyone in a society of right-thinking people. It offends the moral fibre of any society and cannot be justified even in the most exceptional circumstances. Torture beyond its illegality has its prohibition rooted in reason, humanity and dignity. Any soft ground given to torture enables the practice to grow like a cancer and it is  precisely due to this that all right-thinking members of society should always denounce and condemn it.

*The writer is a Director of Research and Publications at Lex Amica